Environment & Climate Change Canada (ECCC), the ministry responsible for developing new regulations to implement Canada’s upcoming ban on asbestos, has stated: “When the new Regulations are in place, the Government of Canada will prohibit the import of asbestos into Canada, and the export of asbestos from Canada to any country including the Ukraine.” The statement was obtained by Alan Smith, an asbestos victim in Alberta, via his MP, Kent Hehr, who is a minister in the Trudeau government.

The Canada–Ukraine Free Trade Agreement (CUFTA) specifically includes asbestos – a fact that has aroused concern. CUFTA was negotiated by the previous Conservative government of Stephen Harper, a big supporter of the asbestos industry. CUFTA came into effect on August 1, 2017.

CUFTA specifically states that Article XX of the 1994 General Agreement on Tariffs & Trade (GATT) “is incorporated into this Agreement”. Article XX of GATT provides an Exemption that “nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures … necessary to protect human, animal or plant life or health.”

In 2000 the World Trade Organization (WTO) used GATT Article XX to dismiss Canada’s legal case against France, when Canada under Liberal Prime Minister Jean Chrétien together with the asbestos industry tried to prevent France from banning asbestos, claiming that banning chrysotile asbestos violated international trade rules. The WTO twice rejected Canada’s argument that “safe, controlled use of chrysotile asbestos” is possible. The WTO panel and the WTO Appellate Body ruled that the ban was justified as a measure “necessary to protect human health”, the first time the WTO ever made such a ruling.

Prof. John McDonald of McGill University testified at the WTO on behalf of Canada and the asbestos industry. The WTO unequivocally rejected his argument that chrysotile asbestos is virtually innocuous. McDonald’s research was funded by and developed in collaboration with the owners of the Quebec asbestos mines. The asbestos industry and other scientists funded by asbestos interests continue today to put forward McDonald’s discredited arguments.

Exemption to protect human health

The fact that the WTO has already upheld the right of countries to ban chrysotile asbestos as a measure “necessary to protect human health” under GATT Article XX means that it is unlikely that Ukraine could successfully challenge Canada’s upcoming ban on import of asbestos and asbestos-containing products. This is not, however, guaranteed and the asbestos lobby, which is politically powerful in Ukraine, could use the fact that asbestos is specifically included in CUFTA to tie up Canada in legal actions to block or delay the prohibition on import of asbestos-containing products.

It is therefore good to have the clear statement from ECCC that Canada will prohibit the import of asbestos (and presumably asbestos-containing products) into Canada from Ukraine, which sends a clear message to the government of Ukraine and the asbestos industry. However, it is wrong to have asbestos included in CUFTA and the Trudeau government should take action to have it removed.

Canada’s asbestos ban moving forward

It is expected that ECCC will publish its Proposed Regulations on asbestos in December 2017 for a consultation period of 75 days. ECCC expects the final Regulations to be published in the fall of 2018. The Trudeau government announced in December 2016 that it would bring in regulations to ban the manufacture, use, import, and export of asbestos by 2018. It seems that the government’s aim is for Canada to implement a ban asbestos before the end of 2018.

It is tragic that Canada is decades late in taking action to ban asbestos. As a consequence of Canada’s promotion of the mining and use of asbestos, many thousands of people in Canada and around the world are dying painful, unnecessary asbestos-related deaths. Finally, the Canadian government is taking action to ban asbestos in Canada and support efforts for a global ban. For asbestos victims, like Alan Smith, it cannot come soon enough.